Could removing a pregnant woman from her role breach the European Convention on Human Rights?

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In Napotnik v Romania, Romanian diplomat Oana-Cornelia Napotnik was posted to Slovenia in 2007. She announced her second pregnancy in January 2009 and was immediately recalled to Romania. The Romanian Ministry of Foreign Affairs (MFA) believed she would be unable to perform her work due to absences for medical appointments and maternity leave. Ms Napotnik was not dismissed and, following leave, she resumed her work in Romania.

Ms Napotnik brought an unsuccessful civil action against the MFA in September 2009. She argued that it was discriminatory to end her posting in Slovenia because the only reason for it was her pregnancies.

Ms Napotnik proceeded to bring a claim before the European Court of Human Rights, relying on the general prohibition of discrimination under the European Convention on Human Rights. She argued the sequence of events clearly indicated that her diplomatic posting had been terminated because she was pregnant.

The Court found that Ms Napotnik’s Convention rights had not been violated. Although Ms Napotnik had been treated differently because of her sex, the Court found that this was “necessary to ensure and maintain the functional capacity of the embassy’s consular section, and ultimately to protect the rights of others, namely Romanians in need of assistance abroad”. Additionally, Ms Napotnik had not suffered any significant setbacks as a result of her posting ending and had, in fact, since been promoted.

This case is interesting because it demonstrates how human rights arguments can be raised in relation to pregnancy discrimination. In different circumstances, it may be possible for a woman to successfully argue that removing her from her role because of her pregnancy breaches the European Convention on Human Rights. It will be fascinating to see how case law develops in this area.